State ex rel. Harth v. Phipps

• Decision Date: 02 June 1931
• Citation: 299 P. 1009,136 Or. 454
• Parties: STATE EX REL. v. PHIPPS, COUNTY JUDGE, ET AL. HARTH ET AL.
• Court: Oregon Supreme Court

299 P. 1009

136 Or. 454

STATE EX REL. HARTH ET AL. v. PHIPPS, COUNTY JUDGE, ET AL.

Supreme Court of Oregon

June 2, 1931

In Bank.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

Mandamus by the State, on the relation of Charles A. Harth and others against F. L. Phipps, County Judge, and L. B. Kelly and another, County Commissioners of Wasco County. Judgment of dismissal, and plaintiff appeals.

Affirmed.

This is a proceeding in mandamus, instituted in the circuit court for Wasco county, Or., on October 6, 1930, by the state of Oregon, on the relation of Charles A. Harth, Walter R Bailey, Ruth C. Gill, and J. W. Logan, against F. L. Phipps county judge, and L. B. Kelly and George Chamberlain, county commissioners, of Wasco county.

Based upon the allegations of the petition, a writ of mandamus was duly issued out of the above-entitled court, and returned on October 6, 1930, requiring the defendants forthwith to levy a tax of from one to ten mills on the dollar on the taxable property situate within the corporate limits of Dalles City Dufur, and Mosier, in accordance with the provisions of section 4600, Or. L., as amended by chapter 356, p. 470, General Laws of Oregon 1927, or to show cause for their failure and refusal so to do.

The defendants answered the writ by alleging the existence of charter provisions whereby the municipalities involved were exempt from the levy of a general road tax by the county court.

On November 22, 1930, the plaintiff filed a motion for judgment on the pleadings, whereby it sought an order requiring the defendants to levy a tax of from one to ten mills on the dollar on all taxable property in Wasco county, Or "including the taxable property within the corporate limits of Dalles City, Dufur and Mosier in said county, for the year 1930 and subsequent years, as required by section 4600, Oregon Laws as amended by the General Laws of Oregon 1927, chapter 356, Session Laws of 1927, page 470, on the ground and for the reason that the charter provisions of said Dalles City, Dufur and Mosier set out in the answer of the defendants herein filed and in the plaintiff's petition herein and in the writ of mandamus issued herein, have been superseded and repealed by said section 4600, Laws of Oregon, as amended."

The defendants moved for a judgment on the pleadings, on the ground that they had no authority to lexy the tax for which the plaintiff had petitioned.

The court denied the plaintiff's motion, and adjudged that the motion of the defendants be sustained and allowed, and dismissed the proceeding. From that judgment the plaintiff has appealed to this court.

J. J. Johnson, of Portland (Albert H. Tanner, of Portland, on the brief), for appellants.

Francis V. Galloway, Dist. Atty., John Gavin, and Celia Gavin, all of The Dalles, for respondents.

BROWN, J. (after stating the facts as above).

The provision of the charter of Dalles City approved February 17, 1899 (section 99), as amended by section 4, chapter 280, p. 823, Special Laws of Oregon 1905, exempting that municipality from the jurisdiction of the county court of Wasco county, and upon which the defendants rely, reads:

"Section 99. The territory within the limits of Dalles City is hereby excepted out of the jurisdiction of the county court of Wasco County upon the following subjects, to wit:

"To divide the same or any part thereof into road districts, or to appoint supervisors of road districts for any part thereof, or to lay out, open, or work on the highways therein; and the inhabitants of said city shall be exempt from the payment of road taxes or the assessment of property within said city for road work, except such taxes as may be levied by the council of Dalles City for expenditures within said city."

Like provisions exist in the charter of Mosier, incorporated on October 6, 1913, and in the special law incorporating the town of Dufur, enacted in 1905. See Special Laws of Oregon 1905, c. 273, p. 743.

Section 4600, Or. L., as amended by chapter 356, p. 470, General Laws of Oregon 1927, the same being the section relied upon by the plaintiff, reads:

"An Act To amend section 4600, Oregon Laws, as amended by chapter 328, General Laws of Oregon, 1925.

"Be it enacted by the People of the State of Oregon.

"Section 1. That section 4600, Oregon Laws, as amended by chapter 328, General Laws of Oregon, 1925, be and the same hereby is amended so as to read as follows:

"Sec. 4600. It shall be, and is hereby made, the duty of the county court or commissioners' court of each county in this state to levy a tax of not less than 1 mill nor more than 10 mills on the dollar on all taxable property in such county at the time of making the annual tax levy, which shall be set apart in the county treasury as a general road fund, to be used in establishing, laying out, opening, surveying, altering, improving, constructing, maintaining and repairing county roads, and bridges on county roads, or used in like manner alone or in cooperation with the state on roads within such county known as state roads, or such roads, or any portion thereof built in cooperation with the United States in accordance with an act of congress approved July 11, 1916, entitled 'An act to provide that the United States shall aid the states in the construction of rural postroads and for other purposes,' or any other act of congress, rule or regulation of any department of the United States, except this provision shall not apply in counties having a population of over twenty-five thousand (25,000) according to the United States census of the year 1910; and such county court or commissioners' court of each county in this state is hereby authorized to cooperate with the state, the United States or any department thereof in the improvement of any public road within such county; provided, however, that counties having a population of more than twenty-five thousand (25,000) may levy a tax of not more than 10 mills on the dollar of all taxable property in such county for a general road fund, as in this act provided. Said tax shall be paid in money and levied and collected in the same manner as other county taxes are levied and collected and when so collected shall be used for road purposes only, as provided in this act, and 50 per cent thereof shall be apportioned to the several road districts, including districts composed of incorporated cities and towns, in such proportion as the amount of taxable property in each district shall bear to the whole amount of taxable property in the county, and the remaining 50 per cent shall be applied to roads in such locality in the county as the county court or commissioners' court may direct; provided, that the amount apportioned to any incorporated city or town shall be transferred to such incorporated city or town to be expended under the management of the officials of such incorporated city or town for the improvement and repair of county roads and for the improvement, repair and maintenance of improved streets within the boundaries of such city or town; and it is hereby further provided, that no county money or county funds, except taxes levied under the state market road act for market road construction, shall be used or expended by the county court or commissioners' court upon any roads or bridges, derived from any tax levy hereafter made, except the same be levied and collected as in this section provided; and provided further, that no road tax shall be included in any general fund levy, or in any other fund in such a manner that the same can not be readily ascertained for apportionment as hereinbefore provided."

The determination of this cause rests upon the construction of the foregoing section, now codified as Or. Code 1930, § 44-2101, and the application of that section to incorporated cities and towns in this state having charter provisions exempting such municipalities from the payment of a general road tax. At the inception, it will be helpful to notice the history of the several legislative acts involved. Tracing the history of the acts relied upon by Dalles City to exempt it from the provisions of the section quoted above, we note, first, chapter 1, Special Laws of Oregon, 1880, entitled: "An Act To incorporate Dalles City and repeal an act entitled, 'An Act to incorporate Dalles City,' approved October 15, 1862, and also an act entitled, 'An Act to incorporate Dalles City,' approved October 24, 1868, and also an act entitled, 'An Act to amend an act entitled "An Act to incorporate Dalles City," 'approved October 26, 1870." Section 100 of that act excepts the territory within the limits of Dalles City out of the jurisdiction of the county court of Wasco county, for road purposes, and exempts the inhabitants of Dalles City from the payment of road taxes, or the assessment of property within that city for road work. This exemption in the charter of Dalles City has been reenacted, but never repealed.

Section 99 of Dalles City Charter, approved February 17, 1899 (Laws 1899, p. 1033), as amended by section 4 of chapter 280, p. 823, Special Laws of Oregon 1905, contains the exemption excepting Dalles City from the jurisdiction of the county court for the purpose of levying a road tax, in substantially the language of the original exemption contained in section 100 of chapter 1 of the act of 1880 just alluded to.

We fully realize that laws exempting property from taxation must be strictly construed. In other words exemptions are not favorites of the law of taxation. However, it is quite apparent that, in the year 1880, the legislative mind resolved--and carried out its purpose--to exempt Dalles City from the provisions of the road law then on the statute books. The provisions of the exemption...